URBASI DHARUANI Vs. CHANDRA DHARUA

JUDGEMENT

(1.) THIS is an appeal by defendants 1 to 3 against the reversing judgment of the learned Subordinate Judge of Bolangir. The plaintiffs, who are respondents 1 and 2 in this appeal, filed a suit for declaration of title and recovery of possession in respect of 37.46 acres of land. The disputed properties admittedly belonged to one Bahya Dharua. Plaintiffs 1 and 2 are the sons of his daughter, Mst. Kangla who was arrayed as defendant 4 in the suit. Defendant 1 was one Mst. Urbashi the widow of Iswar who is alleged to have been adopted by Bahya.

(2.) WHEN the suit was taken up for hearing before any evidence was recorded both the plaintiffs and the defendants requested the trial Judge to determine one of the issues in the suit, that is. whether the present suit is barred by the principle of res judicata. The trial Judge by his order dated 16 -1 -53 came to the conclusion that the suit as laid, is definitely not maintainable in its present form, and the decision in the previous suit would operate as res judicata against the plaintiffs in the present suit.

(3.) THE undoubted position in law is that if Iswar was not the adopted son of Bahya, then his widow would have no title whatsoever to the lands left by Bahya and after his death, it is his daughter Mst. Kangla who would succeed, though to the limited interest, and after her death her sons, plaintiffs 1 and 2, would succeed as reversioners to Bahya Dharua. The only question, therefore, of any importance was whether or not Iswar was the adopted son of Bahya the last male -holder.